Judge Grants Government a Month’s Delay in Release of Guantánamo Force-Feeding Videotapes

23.10.14

Last Thursday, in the latest development in Guantánamo prisoner Abu Wa’el Dhiab’s quest to stop his force-feeding, District Judge Gladys Kessler gave the US government a one-month delay in complying with her recent order for videotapes of Mr. Dhiab’s force-feeding and his “forcible cell extractions” — in which armored guards violently remove prisoners from their cells — to be publicly released.

The challenge by Mr. Dhiab — one of 80 prisoners approved for release but still held — has been putting pressure on the Guantánamo authorities, and on the Obama administration, for many months, as I explained at the time of the ruling about releasing the videotapes, three weeks ago, when I wrote:

This ruling is the latest in a string of powerful rulings by Judge Kessler, who, in May, briefly ordered the government to stop force-feeding Mr. Dhiab. This order was swiftly rescinded, as Judge Kessler feared for his life, but she also ordered videotapes of his “forcible cell extractions” (FCEs) and his force-feeding to be made available to his lawyers, who had to travel to the Pentagon’s secure facility outside Washington D.C. to see them. After viewing them, Cori Crider, his lawyer at Reprieve, said, “While I’m not allowed to discuss the contents of these videos, I can say that I had trouble sleeping after viewing them,” and added, “I have no doubt that if President Obama forced himself to watch them, he would release my client tomorrow.”

As Spencer Ackerman explained for the Guardian, Judge Kessler “permitted the 30-day delay, requested by the Justice Department, in advance of a widely anticipated decision by the government to appeal Kessler’s earlier order for the redacted release of the tapes.” Ackerman added, “Should it take its case to the federal court of appeals, it will be gambling on a bigger victory against disclosure” — although there is, of course, no way of knowing which way the appeals court will swing. From 2009 to 2011, the court was disgracefully hostile to the Guantánamo prisoners, via their habeas corpus petitions, but in recent years judges have surprised critics by delivering rulings undermining the authorities — regarding the military commissions, for example.

Explaining the month’s delay granted by Judge Kessler, Spencer Ackerman noted that, in her order three weeks ago, Judge Kessler “did not specify a timeline for the tapes’ release, a measure lawyers believed constrained the Justice Department’s appeal options.” Last week, however, Judge Kessler provided some dates — October 17 to finish preparing the videotapes for disclosure, by redacting the identities of US personnel, and October 20 for the government and the coalition of media organizations who had sought the release of the tapes to agree on terms for their release.

With dates in place, the Justice Department argued in its request for a stay, which was submitted to the court last Wednesday, that meeting the deadlines “would preclude its right to appeal against Kessler’s decision,” as Spencer Ackerman put it, adding that, in addition, “it cannot meet her deadline for redacting voluminous video footage.”

In their submission, Justice Department lawyers wrote, “Two weeks is not enough time for respondents to review more than 11 hours of video and implement the complex redaction process necessary to comply with the court’s order.”

Adding further details — of rather poor arguments advanced by the Justice Department lawyers — the Washington Post stated:

Government attorneys did not commit to filing appeal, but they argued in asking for a stay that the videos might help detainees or other US enemies develop “countermeasures” or reveal the physical layout of Guantánamo Bay in such a way that it could “disrupt good order” there. They also said the videos might be used to “increase anti-American sentiment and inflame Muslim sensitivities overseas.”

The first points made by the Justice Department lawyers are risible, and the second set superfluous, because the very existence of Guantánamo — as President Obama has repeatedly stated — “increase[s] anti-American sentiment and inflame[s] Muslim sensitivities overseas.” As he stated at a news conference last April:

I think it is critical for us to understand that Guantánamo is not necessary to keep America safe. It is expensive. It is inefficient. It hurts us in terms of our international standing. It lessens cooperation with our allies on counterterrorism efforts. It is a recruitment tool for extremists. It needs to be closed.

In addition, with regard to a potential appeal, it seems to me that the Justice Department needs to think very carefully about that option. After all, it was the appeals court in Washington D.C. (the D.C. Circuit Court) that first allowed challenges to the prisoners’ conditions of confinement to go ahead, in February this year, after District Court judges — including Judge Kessler — had concluded last summer that Bush-era legislation prevented it, opening up the very challenges that the Justice Department is now seeking so desperately to suppress.

On Thursday, the day after the Justice Department submitted its motion, the coalition of media organizations argued, as Spencer Ackerman described it, that “an ‘open-ended’ request for a stay would run afoul of ‘significant, on-going harm to the public’s constitutional right of access that a stay would inflict.'” The Washington Post noted they had stated, “Months from now, the evidence will still be of historic interest, but during the pendency of this proceeding, it is news.”

On Friday, lawyers for Mr. Dhiab submitted what the Post called “their final, written pitch” to Judge Kessler, calling their client’s force-feeding akin to “torture,” and requesting the judge to “order them to use what they view as more humane practices.”

The lawyers — Cori Crider and Alka Pradhan of Reprieve, and Jon B. Eisenberg — also “said the judge should step in to prevent the military from causing the 43-year-old detainee ‘gratuitous pain‘ as a response to his hunger strike,” as the Post described it, adding that they said Mr. Dhiab “does not wish to die, but his on-and-off hunger strike is his only avenue to protest his prolonged detention without a trial.”

The lawyers also explained, “Mr. Dhiab’s English is rudimentary, but his plea — ‘I am human!’ — is clear enough. So are his cries of pain.”

The Post also noted that it is “possible — even likely — Kessler could rule on how Dhiab is being force-fed before the dispute about their release [the release of the videos] is settled,” noting that Mr. Dhiab “wants a doctor — not prison officials — to determine when the feedings are absolutely necessary. He wants to be able to go to the sessions in a wheelchair. He wants fewer restraints used. And he wants the tube that is inserted in his nose for the feedings to be left in for days, rather than taken out after each time it is used.”

As the lawyers described it, “At Guantánamo Bay, the solution to so many problems — including a hunger strike — is an overwhelming show of brute force. This mistreatment of Mr. Dhiab serves no legitimate penological interests, and indeed rises to the level of deliberate indifference. It should be stopped.”

Whatever happens with the release of the videotapes, I hope Judge Kessler agrees with Abu Wa’el Dhiab’s lawyers that his current abuse must be brought to an end, and that, shortly after, he will be given a new home in Uruguay, as promised earlier this year.

I just added a bit of additional information to the article – about the appeals court’s ruling in February, opening the door to the very challenges that have been so successful since, and also pointing out some of the flaws in the Justice Department’s argument that releasing the videos might “increase anti-American sentiment and inflame Muslim sensitivities overseas.” I point out that the very existence of Guantanamo does that, and that President Obama repeatedly says so. This is what he said last April: “I think it is critical for us to understand that Guantánamo is not necessary to keep America safe. It is expensive. It is inefficient. It hurts us in terms of our international standing. It lessens cooperation with our allies on counterterrorism efforts. It is a recruitment tool for extremists. It needs to be closed.”
See: http://www.andyworthington.co.uk/2013/05/04/eloquent-but-unconvincing-president-obamas-response-to-the-guantanamo-hunger-strike/

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Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer. Email Andy Worthington